Cite as U.S. v. Valdez, 146 F.3d 547 (8th Cir. 1998)
United States Court of Appeals
for the eighth circuit
_____________
No. 97-4050
_____________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Henry R. Valdez, *
*
Appellant. *
_____________
No. 97-4075
_____________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Damion E. Johnson, *
*
Appellant. *
_____________
Submitted: April 16, 1998
Filed: June 1, 1998
_____________
Before McMILLIAN, BOWMAN, [footnote 1] and MURPHY, Circuit Judges.
_____________
BOWMAN, Circuit Judge.
Damion Johnson and Henry Valdez were tried jointly for
attempted bank robbery, see 18 U.S.C. section 2113 (1994), and
using a firearm during a crime of violence, see id. section
924(c)(1) (1994). A jury convicted each on both counts. Following
the trial, the District Court(2) sentenced Johnson to 97 months'
imprisonment on the bank robbery conviction to be followed by 120
months' imprisonment on the weapons conviction and sentenced Valdez
to 175 months' imprisonment on the bank robbery conviction to be
followed by 120 months' imprisonment on the weapons conviction.
Each defendant appeals. For purposes of briefing and argument, the
appeals have been consolidated. We affirm.
I.
Shortly after 7:00 a.m. on October 1, 1996, bank president
John Barry arrived at Oak Creek Bank in Valparaiso, Nebraska, to
open for the business day. Shortly after he unlocked and entered
the bank, two men entered and confronted Barry. The two men were
wearing over their faces dark stocking caps with jaggedly cut eye
holes. One was carrying a shotgun and the other was carrying a
bag. The two ordered Barry to open the bank vault and threatened
Barry by telling him he would never see his granddaughter again.
Before Barry could open the vault, another bank employee entered
the bank and discovered the robbery. This prompted the two men to
flee, speeding away in a red pick-up truck.
That same morning at approximately 7:30 a.m., a dispatcher
alerted Officer Stanley Funky to the attempted robbery that had
just occurred and described both the vehicle and the male suspects
involved. Officer Funky exited the interstate that he had been
patrolling and began traveling a gravel road en route to
Valparaiso. At 7:46 a.m., Officer Funky observed two male subjects
traveling the opposite direction in a red pick-up truck about six
miles south of Valparaiso. Believing that the pick-up truck
matched the dispatcher's description, Officer Funky turned around
and began following the truck. The truck accelerated, so Officer
Funky activated his red lights and siren. A chase ensued that
lasted several miles and reached speeds of seventy to eighty miles
per hour. In the meantime, two other officers had created a
roadblock in the expected path of the pick-up truck. As the truck
approached the roadblock, one of the troopers fired a round from
his shotgun at the truck. Only then did the truck stop, whereupon
Johnson and Valdez were arrested.
Pursuant to the arrest, officers seized from Johnson's pocket
a butterfly fold-out knife and from the pick-up truck two black
stocking caps with roughly cut eye holes, a cloth duffel bag, and
a sawed-off shotgun. The pick-up truck had been reported stolen
just a few hours before the robbery took place.
At the police station, FBI Agent Ronnie Ott and Nebraska State
Patrol Sergeant Rod Getting informed Valdez of his Miranda rights.
Valdez agreed to speak to the officers and signed a written waiver.
Soon after the questioning began, Valdez requested an attorney. The
interview immediately ceased. A few moments later, Valdez stated
that he had changed his mind and wanted to answer questions. Valdez
went on to provide a detailed account of the attempted robbery. In
this confession, however, Valdez never named the other party with
whom he was involved in the robbery. Instead, Valdez referred to
the other individual as his accomplice. Valdez admitted that he
and his accomplice stole the pick-up truck, purchased the stocking
caps, cut eye holes in the stocking caps with a butterfly knife,
waited in the bushes atthe bank for the bank president to arrive,
and then entered the bank in an attempt to execute the robbery.
II.
Valdez raises two issues separate from those raised by
Johnson. Valdez first argues that his confession was not voluntary
and therefore should not have been admitted as evidence against
him. Valdez claims that, after he requested counsel and the
interrogation ceased, the officers held up some papers and stated
that Johnson had already told them everything. Only then, Valdez
contends, did he change his mind and decide to talk. Valdez
further claims that he confessed to the robbery without being
readvised of his Miranda rights. The government contends, however,
that the agents never held up papers indicating that Johnson had
already spoken with them. Rather, when the interrogation was
initially terminated, the government claims that the agents stood
up to leave, and it was then that Valdez stated that he had changed
his mind and wanted to talk. The government further asserts that
Valdez was readvised of his Miranda rights and waived them a second
time.
The voluntariness of a confession is a question of law and
thus entitled to de novo review. See Miller v. Fenton, 474 U.S.
104, 115 (1985). A district court's factual findings about the
circumstances surrounding a confession, however, are reviewed only
for clear error. See United States v. Hornbeck, 118 F.3d 615, 618
(8th Cir. 1997). To determine the voluntariness of Valdez's
confession, the District Court held a Jackson v. Denno [footnote
3] hearing wherein both Agent Ott and Valdez testified as to their
version of the facts surrounding the confession. [footnote 4] The
court specifically found Valdez to be "totally incredible," Trial
Tr. at 428, and therefore believed the government's version.We find
no clear error in the District Court's findings of fact, and our de
novo review of the legal issue of the voluntariness vel non of
Valdez's confession proceeds on the basis of those findings.
Valdez began making a confession to the officers after he had
been informed of his Miranda rights and he had signed a written
waiver. Valdez then asked for an attorney, and the interrogation
ceased. Once an accused requests counsel, no further interrogation
may take place until counsel has been made available or "unless the
accused himself initiates further communication, exchanges, or
conversations with the police." Edwards v. Arizona, 451 U.S. 477,
484-85 (1981). Further, the communication initiated by the accused
satisfies Edwards only if it relates to the investigation. See
Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983) (plurality
opinion). In this case, Valdez himself initiated further
communication by telling the agents as they were leaving the room
that he had changed his mind and wanted to answer questions.
Moreover, it was clear that Valdez wanted to talk about the
attempted robbery. Valdez then was readvised of his Miranda
rights, waived them again, and confessed to the attempted robbery.
We hold that Valdez's confession was made knowingly and
voluntarily. [footnote 5]
The second issue Valdez separately raises relates to his
sentencing: whether the District Court erred in denying him a
downward departure based on diminished capacity. The sentencing
guidelines provide:
If the defendant committed a non-violent offense while
suffering from significantly reduced mental capacity[,] . . .
a lower sentence may be warranted to reflect the extent to
which reduced mental capacity contributed to the commission of
the offense . . . .
U.S. Sentencing Guidelines Manual section 5K2.13 (1995). To be
considered for a downward departure under this section, the
defendant must have committed a nonviolent offense. Valdez argues
that, because the shotgun used in the attempted robbery was not
loaded and his accomplice was carrying the weapon, his commission
of the robbery should be considered nonviolent. We reject this
argument and hold that Valdez was not entitled to a downward
departure for diminished capacity. See United States v. Mayotte,
76 F.3d 887, 889 (8th Cir. 1996) (holding that "[defendant's]
commission of the offense of bank robbery precludes any 'diminished
capacity' reduction" under section 5K2.13).
III.
Johnson raises two arguments apart from those set forth by
Valdez. First, under a theory different from Valdez's, Johnson
takes issue with the admissibility of Valdez's confession. At
trial, the substance of Valdez's confession was offered through the
testimony of Agent Ott. The court instructed the jury both before
it heard Ott's testimony and after the trial, as part of the jury
instructions, not to consider the confession as evidence against
Johnson. Ott also told the jury that Valdez would not identify in
his confession the person who accompanied him during the robbery.
And just as Valdez had done in giving his confession, Ott referred
to the unidentified companion as Valdez's accomplice. Thus,
Johnson's name never had to be redacted from Ott's testimony
because Valdez never had mentioned Johnson by name in his
confession. The only part of Valdez's confession relevant to this
discussion was the reference to Valparaiso as being the
accomplice's home town, which Ott omitted from his testimony.
Johnson contends that the confession was admitted in violation
of his Sixth Amendment right to confront and cross-examine
witnesses against him. More specifically, Johnson alleges a Bruton
violation. See Bruton v. United States, 391 U.S. 123 (1968). In
Bruton, the Supreme Court held that limiting instructions are not
constitutionally adequate when "powerfully incriminating
extrajudicial statements of a codefendant, who stands accused
side-by-side with the defendant, are deliberately spread before the
jury in a joint trial." Id. at 135-36. The Supreme Court later
held in Richardson v. Marsh, 481 U.S. 200, 211 (1987), that a
proper limiting instruction is constitutionally adequate when "the
confession is redacted to eliminate not only the defendant's name,
but any reference to his or her existence."
We have interpreted Bruton as prohibiting the presentation of
a redacted statement that "draws the jury's attention to the fact
that a name was omitted and invites the jury to fill in the blank."
United States v. Long, 900 F.2d 1270, 1280 (8th Cir. 1990) (citing
United States v. Garcia, 836 F.2d 385, 390-91 (8th Cir. 1987)). We
find constitutionally problematic cases "in which the redacted
statement alerts the jury to the fact that a name available to the
prosecution has been purposely omitted . . . [T]his may improperly
lead the jury to infer that the omitted name must be the
defendant's." Garcia, 836 F.2d at 390; see also Gray v. Maryland,
118 S. Ct. 1151, 1156 (1998) (holding that "redactions that replace
a proper name with an obvious blank, the word 'delete,' a symbol,
or similarly notify the jury that a name has been deleted" render
the admission of a codefendant's confession unconstitutional).
Valdez never mentioned in his confession the name of the
person with whom he had attempted the robbery, and Agent Ott told
this fact to the jury. We thus are not presented with the
situation in which a name was actually omitted in the redacted
confession, so we are not concerned with the difficulties presented
in that circumstance. See Garcia, 836 F.2d at 391. We therefore
look to whether the codefendant's confession incriminates the
defendant "on its face," United States v. Flaherty, 76 F.3d 967,
972 (8th Cir. 1996) (citing Richardson, 481 U.S. at 211), and
inquire whether theredacted confession "itself implicates the
defendant; there is no violation where the confession implicates
the defendant only when linked to other evidence." United States
v. Jones, 101 F.3d 1263, 1270 (8th Cir. 1996) (citing United States
v. Miller, 995 F.2d 865, 867 (8th Cir.), cert. denied, 510 U.S.
1018 (1993)), cert. denied, 117 S. Ct. 1346 and 117 S. Ct. 1566
(1997).
On its face, Valdez's confession does not itself implicate
Johnson. Only by linking the confession to other evidence could a
jury infer that the accomplice was in fact Johnson. Further, the
prosecution did not improperly "[lead] the jury straight to the
conclusion" that the accomplice was Johnson. Long, 900 F.2d at
1280. In fact, Valdez's confession was redacted to omit his
statement that his accomplice was from the small town of
Valparaiso, thus minimizing the chance that the jury would infer
that the accomplice was Johnson, who was actually from Valparaiso.
We find no Bruton violation and hold that the limiting instruction
provided by the court to the jury was constitutionally adequate.
Second, Johnson argues that the District Court erred by
including a prior, uncounseled juvenile adjudication for burglary
and criminal mischief in his criminal history score. Prior to
Johnson's sentencing, the District Court held a hearing on the
issue and received evidence, including testimony from Johnson. We
review the court's findings for clear error. See United States v.
Early, 77 F.3d 242, 245 (8th Cir. 1996) (per curiam).
A defendant can collaterally attack during federal sentencing
an earlier state court conviction only on the ground that it was
obtained in violation of the defendant's right to counsel. See
United States v. Jones, 28 F.3d 69, 70 (8th Cir. 1994) (per
curiam). After the government proves the fact of conviction, the
burden then shifts to the defendant to show that the prior
conviction is not constitutionally valid. See Early, 77 F.3d at
245. Johnson claims that his right to counsel was violated
because, he asserts, his waiver of counsel at the juvenile
proceeding was not voluntary. Forsupport, Johnson states that at
the time of the juvenile adjudication he was only seventeen,
inexperienced with the juvenile justice system, and that he knew
his mother and stepfather wanted him to resolve the matter quickly.
Johnson's juvenile court records show that at his adjudicatory
hearing the court properly advised Johnson and his mother of his
rights and that he waived his right to appointed counsel at that
time. At his disposition hearing held some months later, Johnson
appeared with his mother and an attorney. Neither Johnson, his
mother, nor his attorney sought at that time to set aside the
adjudication because of an invalid waiver of counsel. There is
simply no support in the record for Johnson's bare assertions that
his waiver was involuntary. We therefore hold that the District
Court did not clearly err in concluding that Johnson failed to
establish that his waiver of counsel was invalid. Accordingly, it
was proper for the District Court to use Johnson's juvenile
adjudication in determining his criminal history category.
IV.
The remaining issues are raised by both Johnson and Valdez.
They first argue that the District Court erred in concluding that
the gun used in the robbery was a short-barreled shotgun. The
firearm seized from the truck and later admitted into evidence was
a fully functional "Ted Williams model 200, pump 12 gauge shotgun."
Trial Tr. at 362. The barrel of the gun had been shortened to
sixteen inches, and the stock had been partially cut off, leaving
a "pistol grip-type stock." Id. at 365. The overall length of the
firearm was twenty-seven and one-half inches.
Both Johnson and Valdez received a mandatory ten-year sentence
under 18 U.S.C. section 924, which provides in part:
Whoever, during and in relation to any crime of violence . .
. uses or carries a firearm, shall, in addition to the
punishment provided for such crime of violence[,] . . . be
sentenced to imprisonment for five years, and if the firearm
is a . . . short-barreled shotgun, . . . to imprisonment for
ten years . . . .
18 U.S.C. section 924(c)(1). The ten-year mandatory sentence thus
requires that the firearm be a "short-barreled shotgun," which is
defined as:
[A] shotgun having one or more barrels less than eighteen
inches in length and any weapon made from a shotgun (whether
by alteration, modification or otherwise) if such a weapon as
modified has an overall length of less than twenty-six inches.
Id. section 921(a)(6). This statute proscribes the use of two
sub-categories of weapons: 1) a shotgun with a barrel shorter than
eighteen inches, and 2) any weapon made from a shotgun that is
shorter than twenty-six inches. See United States v. Hall, 972
F.2d 67, 70 (4th Cir. 1992). The second sub-category is
inapplicable because the firearm at issue is longer than twenty-six
inches.
Johnson and Valdez argue that the first sub-category is also
inapplicable. They concede that the barrel of the firearm is less
than eighteen inches, but they claim that the firearm is not a
shotgun within the meaning of the statute. A "shotgun" is defined
as "a weapon designed or redesigned, made or remade, and intended
to be fired from the shoulder." 18 U.S.C. section 921(a)(5). The
two maintain that, because the firearm now has a pistol grip, it is
no longer intended to be fired from the shoulder and, therefore,
falls outside the scope of the definition. The District Court
rejected this argument, interpreting the statute to include the
firearm. We review de novo a district court's statutory
interpretation. See United States v. Williams, 136 F.3d 547, 550
(8th Cir. 1998).
There is no dispute that the shotgun as originally designed
and made was intended to be fired from the shoulder. We conclude
that the statute applies to this firearm even though, after the
stock had been sawed off to create a pistol grip, it no longer
could be fired from the shoulder. The statute, by its express
terms, applies to weapons "designed or redesigned, made or remade."
18 U.S.C. section 921(a)(5) (emphasis added). We therefore agree
with the District Court that the statute requires only that a
firearm be intended at some point during its design or redesign,
making or remaking to be fired from the shoulder. The firearm at
issue clearly meets this requirement. The District Court correctly
sentenced Johnson and Valdez to an additional ten years pursuant to
section 924(c)(1).
Johnson and Valdez next contend that the District Court erred
in enhancing their sentences for reckless endangerment during their
flight from police officers. The sentencing guidelines provide for
a two-level enhancement "[i]f the defendant recklessly created a
substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer."
U.S. Sentencing Guidelines Manual section 3C1.2 (1995). "Reckless"
is when a "defendant was aware of the risk created by his conduct
and the risk was of such a nature and degree that to disregard that
risk constituted a gross deviation from the standard of care that
a reasonable person would exercise in such a situation." Id.
section 2A1.4 (1995), comment. (n.1). The District Court found
that Johnson and Valdez recklessly endangered the lives of other
motorists and at least three state troopers. We review a district
court's finding of recklessness for clear error. See Hobbs v.
Evans, 924 F.2d 774, 775 (8th Cir. 1991) (per curiam).
We first note that Valdez's sentence can be enhanced under the
reckless-endangerment provision even though Johnson was identified
as the driver of the truck. See U.S. Sentencing Guidelines Manual
section 3C1.2, comment. (n.5) ("Under this section, the defendant
is accountable . . . for conduct that he aided or abetted . . . .).
At trial, Agent Ott testified that Valdez admitted to waving the
shotgun during the car chase in the hope that whoever was chasing
them would see the shotgun and back off. See Trial Tr. at 458.
That testimony, coupled with the fact that Valdez presented no
evidenceto the contrary, leads us to conclude that Valdez aided and
abetted Johnson during the course of the chase.
We now turn to the question of whether Johnson and Valdez's
actions during their flight recklessly created a substantial risk
to others. Johnson attempted to flee from police by driving
seventy to eighty miles per hour on a gravel road for at least four
miles with Officer Funky in pursuit. The chase ended only after
Johnson and Valdez reached a roadblock set up by two other officers
and a round from a shotgun was fired at the truck. We believe the
District Court did not clearly err in finding that this constituted
reckless endangerment. See United States v. Sykes, 4 F.3d 697, 700
(8th Cir. 1993) (per curiam) (upholding finding of reckless
endangerment under section 3C1.2 where police had to pursue
defendant after defendant sped off in vehicle and police had to
force defendant off the road to apprehend him). As the court
found, the officers involved in the chase and motorists and
pedestrians in the area were placed at substantial risk. Johnson
and Valdez claim that their conduct falls short of recklessness
because the flight took place in daylight, it occurred on county
roads in a rural area, and no other vehicles or pedestrians were
encountered during the pursuit. We find this argument meritless.
We do not interpret section 3C1.2 to require that a high speed
chase occur at night, in an urban area, or that any other vehicles
actually ended up in harm's way. Further, their argument does not
account for the risk to the officers involved. The District Court
did not err in enhancing Johnson and Valdez's sentences for
reckless endangerment.
Finally, Johnson and Valdez contend that their sentences
should not have been enhanced for obstruction of justice. The
sentencing guidelines provide for a two-level sentence enhancement
"[i]f the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice during the
investigation, prosecution, or sentencing of the instant offense."
U.S. Sentencing Guidelines section 3C1.1 (1995). This can include
an attempt to harm a witness. See id. section 3C1.1, comment.
(n.3(a)); United States v. Adipietro, 983 F.2d 1468, 1479 (8th Cir.
1993).
Here, the government moved to enhance the defendants'
sentences on the ground that they had attempted to harm a
witness--the bank president. The District Court heard evidence,
including testimony from Johnson, and found that Johnson and Valdez
willfully attempted to have the bank president harmed. We will
review this finding for clear error. See United States v. Moss,
138 F.3d 742, 745 (8th Cir. 1998). We will review de novo the
question of whether the defendants' conduct warrants an
obstruction-of-justice enhancement. See United States v. Eagle,
133 F.3d 608, 611 (8th Cir. 1998).
The government presented evidence that Johnson and Valdez
attempted to have the bank president harmed while they were
awaiting trial and in custody at the Lancaster County Jail in
Lincoln, Nebraska. Melvin Denny Lear, a friend of both Johnson and
Valdez, testified that he had a phone conversation with Johnson in
which Johnson talked about wishing something bad would happen to
the bank president. Lear also testified that he had phone
conversations with Valdez in which Valdez asked Lear whether he
could get a gun and Valdez talked about getting a bunch of guys and
doing something to the bank president. Lear denied that any of the
threats were serious. Lear further denied taking any steps to harm
the bank president. The District Court found that, as to these
denials, Lear was lying.
Several other witnesses testified. Jim Hughes, Johnson's
uncle, testified that, during a conversation with Johnson at the
jail, Johnson told Hughes that he wanted to escape and kill the
bank president. Hughes also testified that, during a conversation
with Lear, Lear said to Hughes that Johnson talked about wanting to
escape in order to "do the bank manager," which Hughes interpreted
as meaning to kill the bank manager. Sentencing Tr. at 82-83. Lisa
Hanks testified that Lear asked her to drive Lear and his friends
to Valparaiso "so that he could kick John Berry's [sic] [the bank
president's] ass." Id. at 58. Robert Nelson also gave testimony
about a conversation with Lear in which Lear "said he was going to
get a couple other guys to go hurt some president and he wanted me
to be involved in the beat down." Id. at 100. Nelsontestified
that Lear explained that two of Lear's friends got "narked on."
Id. at 101. Nelson recalled Lear naming Henry Valdez as one of
those friends. Finally, Kenneth Anderson testified that he and a
friend, Corky Graves, visited Valdez at the jail. On the way home
from the jail, Graves said that Valdez had asked Graves to either
"knock off the bank president or get in touch with someone who
could." Id. at 119.
Johnson and Valdez claim that the testimony of Hughes, Hanks,
and Nelson was not credible. A district court's credibility
determinations, however, are "virtually unreviewable on appeal."
United States v. Heath, 58 F.3d 1271, 1275 (8th Cir.), cert.
denied, 516 U.S. 892 (1995). Based on the testimony of these
witnesses, we conclude that the government, needing only to prove
by a preponderance of the evidence that Johnson and Valdez
attempted to have the bank president harmed, see United States v.
Hammer, 3 F.3d 266, 272 (8th Cir. 1993), cert. denied, 510 U.S.
1139 (1994), satisfied its burden of proof, and that the District
Court did not clearly err in its finding that the defendants
attempted to have the bank president harmed. We further hold that
this conduct is sufficient as a matter of law to warrant a
two-level enhancement for obstruction of justice.
V.
We have considered all the issues that Johnson and Valdez have
raised. We conclude that none has merit. In each of the appeals,
the judgment of the District Court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
FOOTNOTES
1. The Honorable Pasco M. Bowman became Chief Judge of the United
States Court of Appeals for the Eighth Circuit on April 18, 1998.
2. The Honorable Richard G. Kopf, United States District Judge for
the District of Nebraska.
3. Jackson v. Denno, 378 U.S. 368, 376-77 (1964).
4. Sergeant Getting had been injured in an explosion just a few
days before the trial started. As a result, he was unable to
testify.
5. Even if we believed Valdez that he was not advised of his rights
under Miranda a second time, we would hold the same. There is
nothing to suggest that the interrogation would have caused Valdez
"to forget the rights of which he had been advised and which he had
understood moments before." Pittman v. Black, 764 F.2d 545, 547
(8th Cir.) (quoting Wyrick v. Fields, 459 U.S. 42, 49 (1982)),
cert. denied, 474 U.S. 982 (1985).